In the case of an individual benefiting from subsidiary protection according to the Qualification Directive, the non-fulfilment of the passport obligation cannot be taken into account in the exercising of discretion for the assessment of authorisation for access to employment.

Facts:

The Applicant is a Turkish national. On account of participation in the occupation of the Turkish consulate general in Munich, the administrative court of Karlsruhe in its decision of 25.07.2007 commissioned the competent asylum authorities to confirm that grounds for deportation existed according to the Qualification Directive (subsidiary protection). In the grounds for the decision, it is stated that the Applicant was extremely likely to be under threat of political persecution in Turkey due to his participation in the occupation of the Turkish consulate general in Munich in 1993, but that the recognition of his right of asylum and confirmation of refugee status conflict with the grounds according to Article 12 of the Qualification Directive. The Applicant benefits at present from exceptional leave to remain.

In April 2010, the Applicant appealed for authorisation to access employment. The authorities rejected this application on the grounds that employment should be refused by discretionary authority due to the Applicant's failure to present a Turkish passport. The Applicant appealed against this decision.

Decision & Reasoning:

The appeal was well-founded. According to the underlying legal provisions, foreign nationals benefiting from exceptional leave to remain may be allowed to access employment under certain circumstances. The Respondent authority had in this case misused its discretionary authority by inappropriately imposing the fulfilment of the passport obligation on the Applicant.

On the one hand, the authority failed to observe Article 26 (3) of the Qualification Directive in exercising its discretionary authority. According to this provision, which is to be taken into account in the interpretation and application of the corresponding law of the Member States, the latter shall allow individuals who have been granted subsidiary protection status to work on an employed or self-employed basis according to the general regulations applying to the profession concerned as soon as subsidiary protection status has been granted. Only the situation in the national employment market may oppose the implementation of this obligation according to Article 26 (3) of the Qualification Directive. The Applicant has been granted subsidiary protection status. Therefore, non-fulfilment of the passport obligation does not apply from the outset in the exercising of discretionary authority.

Irrespective of this, the Applicant is not required to fulfil the passport obligation, which implies that discretionary authority was also misused on those grounds. In principle it may be assumed that a foreign national who is suffering persecution in his home country may, in a clearly-defined context by presenting his case in person, call upon the authorities of the country concerned provided that this does not grant him protection from his country of origin. In this context, efforts made by individuals with a right of asylum to surrender their previous nationality, for example, do not fundamentally exceed the boundaries of what is reasonable. In particular, the fact that an individual with a right of asylum is obliged to appeal to his country of origin or its agency abroad in this context does not violate human dignity, whose protection also promotes the fundamental right to asylum. In doing so, he is not “submitting” to this country but rather is striving to remove a tie which still exists from a legal point of view but which in actuality he has already largely removed already on account of his persecution. Because he is not appealing for protection from the persecuting country through these efforts, he is not threatening his right to asylum. This evaluation also applies in principle to applicants benefitting from simple subsidiary protection from deportation. However, in contrast to the situation described, the case under consideration is characterised by the fact that the Applicant would not only be required to appeal to the representative body of the persecuting country with this request, but must also take into account protection from the persecuting country in the application for a passport. He would have to abide by the regime of the persecuting country and acknowledge this regime in his actions whilst being excluded by the latter from the state’s general peace framework in a manner which conflicts with human rights. In terms of the evaluation of the substance of the case and the outcome, the Applicant’s situation with regard to the law on persecution is comparable with that of a refugee who has obtained the status corresponding to Article 13 of the Qualification Directive. As in the case of the latter, he is not required to reapply for a passport as that would involve renewed protection.

Insofar as the authorities have referred in their considerations of discretionary authority to the significance of the proof of identity in legal relations, the matter should be dealt with by issuing a replacement identity card rather than by refusing to allow involvement in employment.

In this context, the authorities will have to consult with the Federal Employment Agency and reach a new decision on the basis of its pronouncements on the authorisation of involvement in employment.

Outcome:

The authorities were obliged to reach a new decision on the application for the authorisation of involvement in employment taking into account the legal opinion of the Court.